The Un-Conservative Effects of Opposing Gay Marriage

Professor Dale Carpenter from the University of Minnesota Law School first published this essay in the Bay Area Reporter in May 2007. Independent Gay Forum offers the article online. We find his vision of gay parenting insightful and straightforward.

Carpenter says:

Conservative opposition to gay marriage is having unconservative effects, helping to push the boundaries of family law into new territory that challenges the primacy of marriage itself. By opposing gay marriage, conservatives are forcing gay families to seek refuge through untraditional means that could undermine marriage or destabilize family concepts in ways that gay marriage itself would not.

Here are four examples:

Second-parent adoptions

When married couples adopt, both become the legal parents of the child. Traditionally, however, only one member of an unmarried couple could adopt a child. Among other things, this rule has encouraged the couple to get married because it would provide the child with two parents.

Gay couples, who can’t marry, must find other ways to protect their children. Starting in the early 1980s, the National Center for Lesbian Rights pioneered the concept of “second-parent” adoptions by which two unmarried people could both be a child’s legal parents. Over time, the concept has been embraced by courts or by statute in about half the states.

Here’s the kicker. Second-parent adoptions have also become available to unmarried heterosexual couples. Thus, a legal reform intended to compensate for the unavailability of same-sex marriage has been seized by those who can marry but choose not to. It reduces the incentive to marry and means more children will be raised out-of-wedlock.

Triple parenting

Another unconservative consequence of the ban on gay marriage is illustrated by a recent case in Pennsylvania. The case involved a lesbian couple who enlisted a male friend to act as a sperm donor, resulting in the births of two children to one of the women. When the lesbian couple split, the state courts decided that the women should share custody and that the sperm donor should be allowed monthly visits and be ordered to pay child support. Thus, the children would in effect have three parents shuttling them back and forth among three different homes.

Marriage exists in part to clarify legal responsibility for children. If gay couples could marry, as straight couples using sperm donors or surrogate mothers can, they would be more likely to seek exclusive parental rights at the outset (as married straight couples do) because they could adopt as a couple and because of the additional security marriage would give their relationship and their children. Sperm donors and surrogate mothers, for their part, would be more likely to surrender any parental rights since they would be reassured the child would live in a two-parent family fully protected in the law.

Triple-parenting arrangements don’t lead to polygamy, as some conservatives claim. Lesbian mothers aren’t usually keen on marrying sperm donors, after all. But these arrangements do undermine the traditional idea that, when it comes to children, two are parents and more is a crowd.

While gay marriage alone won’t eliminate the many scenarios in which multiple adults vie for children, just as marriage hasn’t eliminated them for straight couples, it would make them somewhat rarer. The absence of gay marriage is opening the door wider to the very trends conservatives believe are destabilizing to families.

Parental visitation

In Minnesota, the state supreme court recently upheld an order allowing a woman parent-like visitation with the two adopted children she raised with her lesbian partner of 22 years. Because the women weren’t married, only one of them formally adopted the kids. When they split, the legal parent barred her ex from seeing them. If they’d been married, both parents would have been entitled to see the children.

The non-parent sued to get some access to the children based on a Minnesota statute allowing a person “reasonable” visitation if the person lived with the children at least two years. The court ordered that the non-parent be given the right to visit the children on a schedule exactly like what a divorced parent would get (weekends, alternate holidays, long summer vacations) — all without having to pay child support.

The Minnesota decision was correct under state law and was perfectly justified given that the lesbian couple could not marry and that both women raised the children. But it does set a precedent by which an unmarried heterosexual partner could likewise claim full parental visitation rights without accompanying support obligations. Another incentive to marry is eroded.

Adult-adult adoptions

Adoption means the two people — the parent and the child — are not strangers in the eyes of the law. It makes them kin.

Not all states set age restrictions on adoptions, so in theory an adult could adopt another adult as his “child.” Barred from marriage, that is exactly what some gay couples have done. One partner adopts the other, giving the two adults some degree of the legal protection marriage would have given — like the rights to visit each other in the hospital, to inherit property without taxation, and so on. This is a perversion of traditional adoption law, to say the least, made attractive only because the partners can’t marry.

Gay families are of course just one part of much larger developments changing family life in the U.S. Those living outside marriage — gay or straight — will understandably find creative ways to protect their loved ones. Left-leaning reformers would regard many or all of these innovations as good; in fact, they are championing them. Conservatives eye them suspiciously because they bring with them the potential to undermine marriage and traditional parental forms and presumptions. Gay marriage would relieve some of the pressure to concoct alternatives.

Think of it this way: Gay families are a rising river stretching across the country. Conservative opposition to gay marriage is a dam blocking the way. Impeded in its natural course, the river does not dry up; its flow is simply deflected into a hundred rivulets and low pastures.

Many conservatives may conclude in the end that the collateral damage being done to stability and tradition is worth it to keep gay couples from marrying. But before family policy is further inundated, they should at least weigh the unconservative consequences.

Dale Carpenter is a professor at the University of Minnesota Law School, where he teaches courses on Sexual Orientation and the Law, the First Amendment, and Commercial Law. He also writes a regular column, “OutRight,” for several gay publications across the country.

Carpenter graduated from Yale College and from the University of Chicago Law School, where he served as editor-in-chief of the law review. After law school, Carpenter was a law clerk to the Hon. Edith H. Jones of the United States Court of Appeals for the Fifth Circuit.